Concussion - again.

Proof, if proof were needed, of why this is so serious an issue.

Berrick Barnes' career looks like it could well be over, due to his history of concussions and what would seem to be linked migraines, amnesia and nausea.

Barnes himself has been running a campaign for heavier padding in scrum-caps; unfortunately, the evidence so far is that they don't have any effect.

The lesson is clear; at all levels, the game needs proper assessment, proper treatment, and,  on the pitch, and end to the idea that anything above the line of the shoulders can be shrugged off as "There was nothing in that". It's too risky, and we can see why.

And, again, one has to ask - why has it taken so long for so many unions, and the IRB, to introduce proper concussion management procedures when the evidence has been there since 2007 that using SCAT cards works?

H/T to Green & Gold Rugby for highlighting this one.

Update; unfortunately - but probably wisely - it seems to have moved from "Berrick Barnes career could well be over" to "probably is" - he's now on an indefinite break from the game.

Oh dear...

I was looking up something on the IRFU website this morning when I noticed this pearl:


"Your use of this website and any dispute arising out of such use of the website is subject to the laws of England, Scotland and Wales."


Which, given that Scotland has a different legal system to England and Wales (which are one jurisdiction) isn't the sort of thing that fills one with confidence. And when that's the IRFU's take on simple matters like their own website, it's not really conducive to making one over-optimistic about fun things like cross-border tournaments like, ooooh, the Pro12 or HEC. You know, the ones the Irish provinces play in...

Concussion guidelines

Apologies for the lag, as it's been a bit busy of late. There's a lot to deal with, as a result.

First, and most recent, I want to touch on concussion. I was lecturing on this back in April, saying that when you looked at the way it's managed in the Boksmart and Rugbysmart programs, it was inexplicable how so potentially dangerous an injury seemed to be more or less ignored in this part of the world.

I'm glad to see the International Rugby Board would seem to agree. They've just introduced new concussion guidelines, more or less identical with those in the Boksmart program (the comment about duty of care is interesting, and it's one I'll hope to return to).

It's no wonder, and it's about time. Concussion kills; in the injuries tables on the Boksmart program, head and concussion injuries come up as one of the leading killers of rugby players at all levels. The evidence of how this proper side-line management helps manage concussion in rugby so much better has been there, properly researched, since at least 2007, and the RugbySmart concussion program since before this.

There remains another, perhaps more worrying mystery. The information and policies that would allow any rugby union to have proper concussion management practices have been there, ready to cut-and-paste, on the websites of at least two unions for a good few years now. Those policies don't require insanely high standards, or a neurologist at every pitch-side; but they're reasonable proper practice, such as having SCAT cards available to allow properly trained club officials to assess players and prevent them hurting themselves.

There was and is no reason why those policies should not have been introduced world-wide as soon as they came out - if not by the IRB, then at least by the individual unions aiming to protect their players.

But, despite it being necessary, reasonable and easy, they weren't. Which begs two questions; first, why not? Secondly; how many players have been injured as a result of this breach of duty by the unions?

Kolpak, Zambrano and Players

It's not often you get a European Court of Justice ruling so well-known that the name of the case becomes a sporting term. One such case was the Bosman judgement in football; another is the Kolpak case.

In brief, Kolpak was about a Slovak handball player. At the time, although Slovakia was not yet an EU member state, he was playing in Germany. He had a valid residence permit and contract. The governing body of the sport in Germany placed restrictions on the number of non-EU nationals who could play on a team.  Mr. Kolpak asked for a player licence which didn't have those restrictions; and was refused. As Slovakia at the time had an association agreement with the EU, this was an invalid discrimination, because Slovak nationals were entitled to the benefit of free movement of workers. The European Court of Justice (ECJ) also held that there was no sports-related reason for this discrimination, so it couldn't stand.

This may seem very, very abtruse. It is, but it has had a huge effect on rugby. The reason is, the same right not to be counted towards limits on the number of non-EU players is extended to nationals of countries that have Association Agreements with the EU. Once those players are lawfully working in the EU, they have equal rights to work as EU citizens and can't have their numbers restricted. And under the Cotonou Agreement among the list of the countries that have those agreements, are South Africa, Namibia, Fiji, Tonga and Samoa. And that's where rugby comes in.

Because once a rugby player from those countries signs for a European club, he doesn't count towards the restrictions on players. That makes him more valuable to that club, as each Kolpak player signed opens up a space for a non-Kolpak player - like an Argentinean, New Zealander or Australian - to be signed as well.

To give a practical example; the French club RC Toulon have, on their books Carl Hayman (NZ - non-Kolpak), Juan Fernandez Lobbe (Argentina - non-Kolpak) and Felipe Contepomi (Argentina - non-Kolpak) on their books. With only two non-EU, non-Kolpak slots available in a match-day 23, this means one of those three will always lose out. However, Joe van Niekirk (SA - Kolpak), George Smith (Tongan passport - Kolpak) or Rudi Wulf (Samoan - Kolpak) are always eligible to play.

This means it's worth a lot to a club to find a way for a non-EU non-Kolpak star to be registered as a Kolpak player in order to get their full money's worth out of the player. For example, when All Black great Andrew Mehrtens was playing with the English team Harlequins in 2005-6, he sought a South African passport (Mehrtens was born in Durban) in order to count as a Kolpak player.

This has led to dramatic results. There are apparently some 150 South Africans playing professional rugby in France alone. The EU has reviewed how it views their status under the Cotonou Agreement - the association agreement that gets them in under Kolpak - from free movement of workers to the provision of services. This has led to big restrictions in the UK for example, where players have to have been playing there for four years to be classed on the same footing as EU players.

However, there may, for some players, now be another angle. In the recent Zambrano case, the ECJ held that parents of a dependent EU national child are to be given full rights to work in the EU state of which those children are nationals as a consequence of the rights of that EU national child. So, the non-EU, non-Kolpak parents of an Irish child could work in Ireland with no restrictions; and, following on other decisions, could move to another EU state to work.

Again, one might ask - so? Well, take a concrete example. Paul Warwick of Munster is moving to Stade Français. Warwick is Australian - non-Kolpak. His wife is Irish, his children are entitled to Irish passports and are EU nationals. Under Zambrano, Warwick, as the parent of dependent EU national children, is entitled to live in Ireland without restriction - and also, under other cases, to move to and work in France without restriction.

Unwittingly, Stade Français have effectively just got themselves another Kolpak player - without the premium for a Kolpak player.

Now, obviously, this is of much more limited impact for a lot of players. However, it's significant. The easiest place in the major rugby-playing EU countries in which the child of non-EU parents can get EU citizenship is Ireland.

A child with an Irish-citizen parent or ancestor; a child with a parent in Ireland for three of the last four years before the child is born; or the child of a Kolpak player - all are entitled to Irish citizenship. That means that for an awful lot of overseas players looking to build an NH career, Ireland would be the logical place to come; especially if they are having a family here. Again, to give a concrete example; Lifiemi Mafi of Munster holds a Tongan passport, and is a Kolpak player. Under Kolpak, there are no restrictions on his residence in Ireland. His daughter was born in Ireland in 2007, and is entitled to Irish citizenship; so, under Zambrano, there are, in effect, no restrictions on Mafi's moving or working within the EU.

Of course, the downside of this is that for French clubs, it adds an extra incentive to look at Australians and Kiwis playing in Ireland.

Thankfully, from the viewpoint of a Munster fan, one Douglas Charles Howlett, Esq., has already signed an extension with Munster. He's not going anywhere...

Mediation in rugby.

The ERC are taking disciplinary action against Newcastle Falcons and Bourgoin over their respective parts in an Amlin Challenge Cup game in January not being played due to the state of the pitch.

Now, it should be said at the start that if there has been a breach of the regulations, then fair enough; it has to be addressed. But I can't help wondering if this is the best way to go about it.

I've spoken before about using arbitration in rugby discipline, based on the lessons from other sports (the GAA). This time, I want to look at using another type of Alternative Dispute Resolution (ADR), mediation, based on sailing.

Sailing has its own disciplinary system to enforce its rules. Sometimes, if there are on-the-water judges, it's like having a referee; if not, it's done by protest hearings, much like a case being decided before a tribunal. But it has also developed its own system of mediation of protests, of which these Australian links should give a flavour  (although strictly speaking, this is closer to a form of concilation than mediation)

Right-of-way disputes would be much like the the playing Laws in rugby; was there a knock-on, was a tackle dangerous, etc. If not dealt with there and then, they have to be dealt with afterwards, by a protest hearing or a citing commissioner.

But the Newcastle/Bourgoin disputes are ones that strike me as being eminently suitable to mediation. After all, both teams would want the game played, as do the ERC; the issue now is resolving the dispute to the satisfaction of all. Sailing deals with these disputes by mediating them, instead of full disciplinary hearings (with the delays and inevitable entrenchment of positions that come with them); and issues that can be sorted out this way will be sorted out this way, with less delay and trouble.

Rugby could do a lot worse than doing similar for these, or indeed other disputes like that between the ERC and the Ospreys over tickets last season. Mediation is not only faster, but it has a very, very high success rate, and in particular preserves relationships between the parties - which, when it comes down to it, is what the IRB talks about in the bit in the Laws about the spirit of the game.

Of course, even better would be if the problem were mediated at the time to prevent it ever becoming a problem - for all concerned, teams, ERC, broadcasters, fans, everyone.

So, a modest proposal; the ERC should consider, very seriously indeed, keeping a panel of mediators available on call at various HEC or Amlin Challenge Cup venues who can, if called on, step in to mediate off-the-pitch issues between teams. It can't hurt, and if it saves just one game a season, or prevents one disciplinary stoush, it would pay for itself.

Unintended consequences.

Being a front row is a bit like classic Vietnam movies; it's dark, hot, humid, bad things happen in there, and you can't talk unless you were there.

And, the Six Nations having just ended, there's been an awful lot of talk about scrummaging in the media, most of it rubbish; your average out-half would be lucky to know one end of a scrum from the other, still less comment intelligently on it.

However, there's a local issue that I have been thinking about for a while. In Munster (and, as far as I know, in some other provinces), at J2 level and below, the Under-19 Law Variations are used in scrums. That means that a scrum can only be pushed 1.5 metres over the mark, that there are limitations on the amount it can wheel - basically, it's a depowered version of proper scrums.

As someone who enjoyed scrummaging, I loathed it as a player. The idea is perfectly sound for underage players, who are developing and need some protection while they learn their trade. However, I have always had very serious doubts about it at adult level.

The main reason, apart from my own grumpy preference, is that it prevents players from ever learning how to scrummage properly. There is an entire generation of club front rows who will always be in these depowered scrums. That might seem fine; but it's not.

Suppose a small club has two teams, a first team, playing J1 at the highest level, where the winners of provincial leagues go on to a round robin to get into the semi-pro Ulster Bank League, and their second team, who play J2. Now, let us suppose that, as very frequently happens, there is an injury crisis, and the usual props for the first team are injured. Normally, the props from the J2 would be promoted, and would get their chance to play on the first team - where there are full scrums.

Now, this is where it becomes interesting. Let's assume that these props are part of the new generation who have gone from underage to J2. Because they have never been taught, and have no experience of, scrummaging in full scrums, they are underprepared for this scrummaging. They are going straight into a more demanding, more dangerous form of scrummaging, with no proper training or preparation. And if this sounds dangerous, it is. It's not a million miles at all from what happened in Vowles v. Evans, where an under-prepared and inexperienced loosehead slipped and the hooker broke his neck as a result.

So, you now have the situation where, if a team runs out of first-team front-rows, it can't safely play games, and exposes itself to a risk if it asks J2 players to scrummage at a level for which they're not - to quote Vowles - "suitably trained or experienced" - and, to put that beyond doubt, the court in Vowles held that "it is obvious that the training/experience which the Law required related to training for or playing in the front row of the scrum. It would be spectacularly unwise for the Munster Branch to force them to play like this, once made aware of it, because that would put the Branch, too, in the firing line; once aware of the danger, they would have the same duty of care as the WRU in Vowles to look after the players' safety. It's debatable whether a sensible referee would even let it go ahead, but it's unfair to put a referee in that situation, in my opinion.

What's even worse is; how on earth, without proper training and gradually giving players coming out of underage scrummaging are players to learn how to scrummage properly to prevent this arising? And this is where we get to the unintended consequences. Something aimed at making players safer but to keep the scrum at the heart of the game looks like it could, down the line, have exactly the opposite effect.

Better to get decent training out there for front rows coming out of the underage ranks - and let them learn how to scrum, safely, before they get thrown in at the deep end.

We Need To Talk About Jonathan...

Jonathan Kaplan will not want to watch the highlights reels from last weekend's internationals. Nor will Peter Allan. Or Paddy Wallace, come to that.

Kaplan awarded a try that should not have been given, because it came from a quick lineout that should not have been allowed. Peter Allan got that call completely and utterly wrong. It was a pretty horrendous error.

But, these things happen. Players make pretty awful mistakes too.

But whenever referees make mistakes like this, someone, sooner or later, demands a replay.

Now, from a sporting perspective, that's nonsense; you roll with the punches that are thrown, that's just life, and these things even out in the long run however infuriating it is at the time.

What I want to talk about is the legal issue of whether or not someone could seek a replay. The answer is; no. A referee is a decision maker, and the basic rule of thumb for all decision makers at law is that they have the right to be wrong, so long as they're wrong according to procedure. This was a plainly wrong decision, but according to the correct rules (the TMO, for example, cannot adjudicate on matters outside the in-goal area, so they couldn't go to the TMO, however tempting it would have been).

There's an Irish case on this, Carew Park AFC v. FAI, from 1999. There, the referee awarded a goal; changed his mind after one team protested; changed his mind again when the other team protested; and the game ended 1-0. The losers challenged the decision. The judge, Barr J., sympathised with them, but pointed out that the Courts would not strike down a referee's decision, even if it was wrong, unless "something appalling" had happened - which would seem to mean that short of a demonstrable fix, the decision stands. The reason was because that if not, if the Courts had to decide challenges to every crucial incorrect decision, it would lead to "a hopeless degree of anarchy".

And, given the state of the breakdown, the scrum, and refereeing in general at the moment, the last thing the game needs is yet more of that.